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Dhirendra Nath Chakraborty Vs. Smt. Sarama Debi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1983CriLJ44
AppellantDhirendra Nath Chakraborty
RespondentSmt. Sarama Debi and ors.
Cases Referred(Paresh Chandra Hati v. Ashilosh Panda). It
Excerpt:
- .....being a proceeding under section 107 of the code. by the said order, the case was fixed as the learned magistrate found that 180 days expired since the date of filing of show cause. the petitioner filed an application under section 107 of the code before the executive magistrate. the learned magistrate on 23-11-79 drew up a proceeding under section 107 of the code against the opposite parties and directed them to appear before him on 19-1-80 and to show cause why they should not be ordered to execute a bond of rupees 1000/- with two sureties, each of the like amount to keep peace for one year. the said proceeding was numbered as miscellaneous case no. 354 of 1979. on 19-1-80 the opposite parties nos. 1, 2 and 3 filed a petition for adjournment and the case was adjourned to 19-2-80......
Judgment:

N.C. Mukherji, J.

1. Let this matter be treated as on day's list.

2. This Rule arises on an application under Section 401 of the Cr. P.C., and is directed against order dated 8th Dec., 1980 passed by Shri A. B. Chakraborty, Executive Magistrate, Alipore, in Miscellaneous Case No. 354 of 1979 being a proceeding under Section 107 of the Code. By the said order, the case was fixed as the learned Magistrate found that 180 days expired since the date of filing of show cause. The petitioner filed an application under Section 107 of the Code before the Executive Magistrate. The learned Magistrate on 23-11-79 drew up a proceeding under Section 107 of the Code against the opposite parties and directed them to appear before him on 19-1-80 and to show cause why they should not be ordered to execute a bond of Rupees 1000/- with two sureties, each of the like amount to keep peace for one year. The said proceeding was numbered as Miscellaneous Case No. 354 of 1979. On 19-1-80 the opposite parties Nos. 1, 2 and 3 filed a petition for adjournment and the case was adjourned to 19-2-80. On 19-2-80 the opposite party No. 1 was present. The other two opposite parties showed cause and the learned Magistrate fixed 15-4-80 for compliance of Section 112 of the Code. On 15-4-80 as the learned Magistrate was on leave the case was adjourned to 11-6-80. On 11-6-80 opposite party Nos, 1 and 2 were absent and the learned Magistrate directed them to appear on the next date that is on 1-7-80. On 1-7-80 opposite party Nos. 2 and 3 were absent. The learned Magistrate again fixed 1-8-80 for appearance of the opposite parties for examination under Section 112 of the Code. On 1-8-80 only opposite party No. 3 was present. The learned Magistrate again fixed 8-8-80. On 8-8-80 all the parties were present. Opposite party Nos. 1, 2 and 3 were examined under Section 112 of the Code. The allegations against them were read over and explained to them. The learned Magistrate fixed 22-9-80 for evidence. On 22-9-80 the learned Magistrate observed that the show cause was submitted by the opposite parties on 19-2-80 and the statutory period of six months had already expired and the case could not continue. On behalf of the petitioner, it was contended that the statutory period was to be counted from the date of compliance of Section 112 of the Code and the matter should be heard. The learned Magistrate, under the circumstances, adjourned the hearing till 3rd Dec., 1980. As on that date the learned Magistrate was on leave the case was adjourned to 8th Dec., 1980 when the learned Magistrate relying on the decision of this Court filed the case and discharged the opposite parties. Being aggrieved the petitioner has come up to this Court.

3. Mrs. Mukti Maitra, learned Advocate appearing on behalf of the petitioner, contends that the opposite party No. 1 did not file any show cause and opposite party Nos. 2 and 3 showed cause on 19-2-80. It appears from the order dated 19-2-80 that opposite party No. 1 was present. The other opposite parties, namely opposite parties 2 and 3, filed show cause. Opposite Party No. l on that date could very well file show cause, but he did not file. No one can compel anybody to file show cause if he chooses not to file. Thus, there is no doubt that the date of filing show cause by the opposite parties was 19-2-80. The learned Magistrate was of the opinion that the commencement of enquiry will have to be counted from 19-2-80, that is the date when show cause notice was filed, Mrs. Maitra, on the other hand contends that enquiry starts from the date when provisions of Section 112 of the Code are complied with. This point has been elaborately dealt in a Bench decision of our Court, reported in 82 Cal WN 922 : 1978 Cri LJ 1171 (Paresh Chandra Hati v. Ashilosh Panda). It was held 'an enquiry in a proceeding under Section 107 of the Cr. P.C., 1973 does not commence with the mere appearance of the opposite party in answer to the notice to show cause, It depends upon the nature of the cause shown. It commences as soon as the opposite party challenges the allegations made against him or refuses to admit the same or submits a petition showing cause against the allegations or the Magistrate otherwise has reason to proceed or proceedes or decides to ascertain the truth of the allegations made against the opposite party by taking evidence or otherwise'. We find nothing to lake a view other than what has been expressed by the Division Bench. We have no hesitation to say that the enquiry commences from the date when show cause was submitted by opposite party Nos. 2 and 3 on which date the opposite party No. 1 also appeared but chose not to file any show cause and did not pray for any time for filing show cause. The learned Magistrate was quite right to say that from 19-2-80 more than six months elapsed and as such he was right in filing the case and discharging the opposite parties. In the circumstances, we find nothing to interfere with the order.

4. In the result, the application fails and the Rule is discharged.

N.G. Chaudhuri, J.

5. I agree.


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